Disqualification of Company Directors: Safeguarding the Public Interest in the Kenyan Investment Market

Authors

  • Kiarie Mwaura

DOI:

https://doi.org/10.5195/jlc.2019.160

Abstract

Over the last two decades, Africa has gone through tremendous economic transformation. It was only in 2004 when the Prime Minister for the UK, Tony Blair, described Africa as the “scar on the conscience of the world” when he was establishing the Commission for Africa. A decade later, he described Africa as “the most exciting continent on the planet because of its opportunities.” Within less than twenty years, the continent has become the world’s most rapidly growing economic region. This economic growth has been attributed largely to the active private sector. Kenya, for example, has realized the highest growth rate in the East African region due to its private sector, which makes a major contribution to the country’s GDP. For this growth rate to continue, African countries need to create competitive legal frameworks that continue to attract investors and protect their interests.

One of such is the disqualification framework for company directors that seeks to protect the public by placing a prohibition on a miscreant director from being involved, for a specific period, in the management of companies. An efficient disqualification framework also prevents people without the necessary qualifications from managing companies and deters those who might be tempted to engage in fraudulent activities. Without a strict disqualification framework, investors are unlikely to be attracted to a country, as they risk losing their investments when their companies are managed by incompetent, negligent, or fraudulent directors, especially those with a track record of mismanaging other companies. This philosophy was captured clearly by the Kenyan Government when it enacted the Companies Act 2015 and stated that one of its key objectives was to facilitate commerce, industry, and other socio-economic activities.  It is against this backdrop that this Article examines whether the disqualification framework under the Companies Act 2015 is adequate to protect the interests of investors. This framework is contrasted with the one that existed under the repealed Companies Act 1962 with a view to assessing whether the reforms are likely to bring about the desired changes.
 

Downloads

Published

2019-04-24

How to Cite

Mwaura, K. (2019). Disqualification of Company Directors: Safeguarding the Public Interest in the Kenyan Investment Market. Journal of Law and Commerce, 37(2). https://doi.org/10.5195/jlc.2019.160

Issue

Vol. 37 No. 2 (2019)

Section

Articles

License


Authors who publish with this journal agree to the following terms:

    1. The Author retains copyright in the Work, where the term “Work” shall include all digital objects that may result in subsequent electronic publication or distribution.

    2. Upon acceptance of the Work, the author shall grant to the Publisher the right of first publication of the Work.

    3. The Author shall grant to the Publisher and its agents the nonexclusive perpetual right and license to publish, archive, and make accessible the Work in whole or in part in all forms of media now or hereafter known under a Creative Commons 4.0 License (Attribution-Noncommercial-No Derivative Works), or its equivalent, which, for the avoidance of doubt, allows others to copy, distribute, and transmit the Work under the following conditions:
      1. Attribution—other users must attribute the Work in the manner specified by the author as indicated on the journal Web site;
      2. Noncommercial—other users (including Publisher) may not use this Work for commercial purposes;
      3. No Derivative Works—other users (including Publisher) may not alter, transform, or build upon this Work,with the understanding that any of the above conditions can be waived with permission from the Author and that where the Work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.

    4. The Author is able to enter into separate, additional contractual arrangements for the nonexclusive distribution of the journal's published version of the Work (e.g., post it to an institutional repository or publish it in a book), as long as there is provided in the document an acknowledgement of its initial publication in this journal.

    5. Authors are permitted and encouraged to post online a pre-publication manuscript (but not the Publisher’s final formatted PDF version of the Work) in institutional repositories or on their Websites prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work. Any such posting made before acceptance and publication of the Work shall be updated upon publication to include a reference to the Publisher-assigned DOI (Digital Object Identifier) and a link to the online abstract for the final published Work in the Journal.

    6. Upon Publisher’s request, the Author agrees to furnish promptly to Publisher, at the Author’s own expense, written evidence of the permissions, licenses, and consents for use of third-party material included within the Work, except as determined by Publisher to be covered by the principles of Fair Use.

    7. The Author represents and warrants that:

      1. the Work is the Author’s original work;
      2. the Author has not transferred, and will not transfer, exclusive rights in the Work to any third party;
      3. the Work is not pending review or under consideration by another publisher;
      4. the Work has not previously been published;
      5. the Work contains no misrepresentation or infringement of the Work or property of other authors or third parties; and
      6. the Work contains no libel, invasion of privacy, or other unlawful matter.
         
    8. The Author agrees to indemnify and hold Publisher harmless from Author’s breach of the representations and warranties contained in Paragraph 6 above, as well as any claim or proceeding relating to Publisher’s use and publication of any content contained in the Work, including third-party content.